ORAL ORDER

1. By this successive bail application filed under Section

439 of the Cr.P.C., the original accused Mansukh Baria is seeking grant of bail in connection with the offence punishable under Sections 376(2)(L) of the IPC and Sections 4, 5(k), 6, 8, 9(k) and Section 10 of the Protection of Children from Sexual Offences Act, 2. This Court has heard learned counsel Mr. N.P. Pandya and State Counsel Ms. Chetna Shah for the respondent State.

3. The brief facts of the prosecution case are that, the father of the minor victim is farm labourer and staying at the different farm land as per the needs of the owner. In the year 2021-22, he was employed for agricultural work by one Kalubhai Dahyabhai, resident of village: Mota Zinzuda, Dist.: Amreli. He along with his family members including the victim minor daughter shifted to said farm for cultivation and stayed there for long. In the month March, 2022, the minor victim due to profuse bleeding became unconscious in the farm and immediately, she was taken to nearby health center and thereafter, referred to Savarkundla Hospital and upon examination, 24 weeks fetus was found in the womb. Before the doctor, the history was given by her that, due to intercourse by the applicant accused, she became pregnant. The accused Mansukh Baria, is the son of sister-in-law of the informant and he used to come at the farm and stayed there even in the absence of family members. In such circumstances, taking advantage of the situation and mild intellectual disability of the victim, he committed an act of rape and penetrative sexual assault upon the minor victim. The informant being father of the minor, initially, lodged an FIR disclosing the aforesaid facts pointing the suspicious upon the accused. The medical examination of the victim as well as accused having been done at the Government hospital. For the determination of the paternity of the foetus, the blood samples of both the accused as well as victim were taken for forensic examination. The statement of the victim under Section 164 by the Magistrate was recorded. With the consent of the guardian, termination of pregnancy was done. After recording necessary statement and considering the material, the investigating agency as filed chargesheet for the aforesaid offences against the applicant and same has been culminated into Special (POCSO) Case No.

57 of 2022.

4. In the aforesaid facts, the accused had in the earlier occasion, moved an application for bail and same was rejected by the Sessions Court, observing that, the prima-facie case for the serious offence is made out against the applicant. The bail application filed before this Court was withdrawn on 22.08.2022 and at the time of withdrawal, right was reserved to file a fresh application before the Sessions Court after recording the deposition of the victim. After completion of the deposition of the victim, again the bail application was preferred before the Court concerned and considering the evidence on record, the Sessions Court was not inclined to release the applicant on bail and same came to be dismissed.

5. In the aforesaid facts, this successive bail application has been preferred by the accused.

6. Mr. N.P. Pandya, learned advocate for the applicant has submitted that, the DNA report placed on record by the prosecution, is not positive and DNA profile of foetus and the blood of the accused do not show biologically paternal relation with each other and in that view of the matter, the theory of the prosecution for alleged act by the accused cannot be believed. That, at the time of lodgement of the FIR, the father of the victim has specifically disclosed that he having suspicion on the accused that he was the author of the said act of pregnancy. That, as per the medical report, there was 24 weeks foetus i.e. in other words, 6 months pregnancy was found during the examination of the victim and it is difÏcult to believe that no one has noticed the said pregnancy. That, the deposition of the